February Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For February 2022, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485]. USCIS has also indicated that it will not accept any new employment-based fifth preference adjustment of status applications based on the Regional Center Program until that program is reauthorized.
In February, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in February.
The EB-2 preference category remains “current” for all countries other than China and India, which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The EB-3 preference category is also “current” for all countries other than China and India, whose final action dates have remained the same since January 2021. In January, the final action dates for EB-3 preference cases for Chinese and Indian nationals was March 22, 2018, and January 15, 2012, respectively. The final action dates remain the same in February.
The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
Proposed Settlement for Plaintiffs Entrapped at ICE’s Fake N.J. University in 2016.
On January 28, 2022, the U.S. District Court for the District of New Jersey granted preliminary approval to a settlement agreement in a class-action lawsuit filed by a group of students who had enrolled at the University of Northern New Jersey, a fake university with no classes or professors that was set up as a sting operation for Immigration and Customs Enforcement (ICE) to investigate student fraud. The proposed settlement agreement would settle a class-action lawsuit filed by foreign nationals who claimed that they unknowingly enrolled at the fake university. Under the agreement, the government would reverse various adverse immigration actions it took against foreign nationals who enrolled at the fake university and would not use their enrollment against them in evaluating applications for immigration benefits in the future. Enrollment at the nonexistent UNNJ would not in itself be “sufficient grounds” for inadmissibility to the U.S. or deportation without other evidence of wrongdoing.
Department of Homeland Security to Reestablish the Homeland Security Academic Advisory Council
On January 12, 2022, the Department of Homeland Security (DHS) published a notice in the Federal Register to reestablish the Homeland Security Academic Advisory Council (HSAAC), a discretionary federal advisory committee. The primary purpose of the HSAAC will be to provide advice and recommendations to the Secretary and DHS senior leadership on matters related to homeland security and the academic community.
The HSAAC will provide recommendations to the Secretary of DHS on key issues across the homeland security enterprise as they relate to educational settings, institutions, and academic activity. These may include, but are not limited to:
Student, faculty, school and campus-related safety;
Emergency management and preparedness;
Community resiliency;
Anti-hate initiatives, addressing gun violence, targeted violence and terrorism;
Misinformation, disinformation, and cyber-bullying;
Engaging and integrating immigrant (resettlement) communities and new Americans as they intersect with academia;
International students and visa processing;
Collegiate cybersecurity initiatives;
Foreign influence and interference in our academic institutions;
Diversity, equity, and inclusion in educational settings; and
developing applicant pipelines to support a 21st century DHS workforce.
Department of State (DOS) Provides Opportunity for Academic Training Extensions for J-1 Students in STEM Fields
On January 21, 2022, the Directorate of Private Sector Exchange (Private Sector) announced an initiative for College and University Student-category exchange visitors participating in academic training in the fields of science, technology, engineering, and mathematics (STEM). This initiative comes in response to the Departments of State and Education joint statement of Principles in Support of International Education. Eligible exchange visitors must be undergraduate and pre-doctoral degree-seeking J-1 College and University students who are pursuing or recently completed STEM-related studies. The maximum total length of their academic training is capped at 36 months (including a single extension); non-degree seeking students are not eligible to apply. The initiative will run for the next two academic years (2021-2022 and 2022-2023) for exchange students who meet the academic training requirements. Sponsors seeking academic training extensions up to 36 months pursuant to this initiative must secure prior written approval by submitting extension requests through the Private Sector’s Office of Designation via AGexchanges@state.gov.
Department of Homeland Security (DHS) Updates STEM Designated Degree Program List to Include 22 New CIP Codes
On January 21, 2022, the Secretary of Homeland Security published a notice in the Federal Register that amended the DHS STEM Designated Degree Program by adding twenty-two (22) qualifying fields of study and corresponding Classification of Instructional Programs (CIP) codes. This list is used to determine which fields of study in science, technology, engineering, and mathematics qualify as STEM degrees for students on F-1 visas, thereby allowing them to take advantage of an additional 24 months of post-graduate employment authorization reserved for students with designated STEM degrees.
Notable additions to the STEM designated degree program include Data Science, General; Data Analytics, General; Financial Analytics; and Business Analytics. Please refer to the Federal Register for a complete list of the added CIP codes and field descriptions.
U.S. Citizenship and Immigration Services (USCIS) Updates Guidance on O-1B Petitions for Extraordinary Ability in the Arts or Achievement in Motion Pictures and Television
On January 13, 2022, USCIS announced clarifying guidance on how it determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry (MPTV) when a case has elements of both. This updated guidance is in the USCIS Policy Manual and clarifies that USCIS applies the eligibility requirements for O-1B (MPTV) if the beneficiary will perform services for motion picture or television productions while in the United States. It also provides examples as to which new forms of media, including various types of online content, USCIS may consider to properly fall within the O-1B (MPTV) subcategory.
The updated guidance states, in part: “USCIS interprets the eligibility requirements for O-1B (MPTV) to apply if the beneficiary will perform services for motion picture or television productions while in the United States regardless of other prospective services outside the MPTV industry...For a beneficiary with a record of extraordinary achievement in motion picture or television (MPTV) productions, USCIS interprets the beneficiary’s “area of extraordinary achievement” to include any proposed work within the MPTV industry.”
Please contact Iandoli, Desai & Cronin if you have questions about an existing O-1B case or are interested in evaluating your options for an O-1B visa (info@iandoli.com).
U.S. Citizenship and Immigration Services (USCIS) Updates Policy Guidance on O-1A Petitions with a Focus on STEM Fields
On January 21, 2022, USCIS updated its guidance to clarify how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability in sciences, education, business, or athletics. This update provides additional guidance regarding the evaluation of evidence submitted in support of O-1A petitions for beneficiaries in sciences, education, business, or athletics, including examples and considerations that may be especially relevant for persons in STEM fields. In addition, this update provides guidance regarding the requirement that all O-1 beneficiaries are coming to the United States to continue work in their area of extraordinary ability or achievement, particularly how that requirement relates to beneficiaries transitioning to a new occupation.
This policy adds a chart in an appendix describing examples of evidence that may satisfy the O-1A evidentiary criteria, as well as considerations that are relevant to evaluating such evidence with a focus on evidence and considerations that are relevant to STEM fields. USCIS also provides examples of qualifying comparable evidence that petitioners could provide in support of a petition for a beneficiary in a STEM field.
This policy guidance is effective immediately. It is worth noting that this update does not change the criteria for the O-1A visa, but rather how a USCIS officer may consider the evidence submitted when adjudicating an O-1A petition.
Please contact Iandoli, Desai & Cronin if you have questions about an existing O-1A case or are interested in evaluating your options for an O-1A visa (info@iandoli.com).
Department of State (DOS) Announces F/M/J Processing Posts for Applicants in Russia
Due to the Russian government’s April 23, 2021 notification prohibiting the U.S. Embassy Russia from employing foreign nationals in any capacity, the U.S. Embassies in Russia have not been offering non-diplomatic visa services. This has effected both non-immigrant and immigrant visa processing.
The Department of State announced on January 21, 2022 that it has designated multiple posts for processing certain nonimmigrant visa applications from persons residing in Russia due to the severely limited consular operations. Under this designation, Russia-based student visa applicants (F and M categories) as well as academic exchange visitors (student, professor, research scholar, short-term scholar, and specialist J visa categories) and participants in U.S. government-funded exchange visitor programs may apply at the following posts: Mission Kazakhstan and U.S. embassies Belgrade and Yerevan. Applicants are encouraged to check each post’s website for the latest information on services and appointment availability at that specific post.
This designation does not prevent Russia-based F, M, and J applicants or any other non-immigrant visa applicant from applying at another post where they are physically present.
Due to the suspension of immigrant visa services in Moscow, the U.S. Department of State has designated the U.S. Embassy in Warsaw to process immigrant visas for residents of Russia.
These designations do not exempt travelers from the Centers for Disease Control’s (CDC) requirement that all air travelers to the United States be vaccinated against COVID-19 with a WHO emergency use listed vaccine.
Customs and Border Protection (CBP) Notifies of New Temporary Travel Restrictions at Canadian and Mexican Borders
CBP published a notice in the Federal Register announcing the decision of the Secretary of Homeland Security (“Secretary”) to temporarily restrict travel by certain noncitizens into the United States at land ports of entry, including ferry terminals (“land POEs”) along the United States-Mexico border. “These restrictions only apply to noncitizens who are neither U.S. nationals nor lawful permanent residents (“noncitizen non-LPRs”). Under the temporary restrictions, DHS will allow processing for entry into the United States of only those noncitizen non-LPRs who are fully vaccinated against COVID-19 and can provide proof of being fully vaccinated against COVID-19 upon request. The restrictions provide for limited exceptions, largely consistent with the limited exceptions currently available with respect to COVID-19 vaccination in the international air travel context. Unlike past actions of this type, this Notification does not contain an exception for essential travel.”
Supreme Court Weighing Indefinite Detention of Unauthorized Immigrants in Two Seminal Cases
The Supreme Court heard arguments for two cases on January 11, 2022 over whether immigrants detained for long periods while they are contesting deportation are entitled to hearings to decide whether they may be released on bond as their cases move forward. The court’s answer to the question will affect hundreds of thousands of immigrants who are being indefinitely detained while their cases are decided by immigration courts that face historic backlogs with years-long waiting periods. The plaintiffs in the two cases coming before the Court argue that immigrants held in detention for longer than six months are entitled to a bond hearing in which a judge determines whether they should continue to be detained. However, the Biden Administration disagrees, with a lawyer for the federal government stating that “Congress can make rules for noncitizens that it can’t for citizens and that detention during removal proceedings is constitutionally permissible.” Furthermore, the Justice Department (DOJ) argues the immigration statute in question does not entitle immigrants to a hearing and that the lower courts do not have the authority to grant class-wide relief. The Court’s decision on these two cases will be forthcoming this year.